Riyaz Ahmad Bhat vs State Of J&K; & Others on 12 February, 2018

[Cites 28, Cited by 1]

Jammu & Kashmir High Court - Srinagar Bench

Riyaz Ahmad Bhat vs State Of J&K; & Others on 12 February, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.904/2012
Date of order: 12 .02.2018
Riyaz Ahmad Bhat
v.
State of J&K and others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearing Counsel:
For Petitioner(s): Mr Javed Iqbal, Advocate
For Respondent(s): Mr M. A. Wani, Sr. AAG
Whether approved for reporting? Yes

1. The petitioner claims to be the owner in possession of the land
measuring 16 Kanals and 15 Marlas. He also asserts that he is in
possession and occupation of 121 Kanals and 05 Marlas of the land
as the lawful attorney (in total 138 Kanals), situate in Estate
Singhpora and Estate Dever Yakhmanpora, Pattan, Baramulla. The
kind of soil of the said land, according to the petitioner, is maidani
and a few kanals of the land are recorded as swampy. This land, it is
affirmed, is not agricultural land within the meaning and
contemplation of Section 133-A of the J&K Land Revenue Act. The
petitioner has proceeded to state that he planned to develop the
aforesaid land, which is barren in nature into an Orchard. The
petitioner's contention is that in order to develop this chunk of land
into an orchard, he erected a boundary wall, besides laying the
service roads for the proper management and convenient passage/
carriage of the produce. However, the respondents have caused
undue interference with the developmental activity undertaken and
carried by the petitioner at the site. This interference, as averred by
the petitioner, is ultra vires the provisions of Section 133-B of the
Land Revenue Act. He (the petitioner) made an application for the

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grant of permission for converting the "Banjar" barren land into
orchard by way of earth filling. According to the petitioner, by his
orders bearing no.DCB/SQ/608-10 dated 14th June 2012 and
no.DCB/SQ/598-602 dated 14th June 2012, the respondent no.4
directed the respondent no.7 to remove all kinds of structures/roads
constructed into the said land and submit the report to the respondent
no.2. These orders, according to the petitioner, are suffering from
the doctrine of dictation and do not emanate from the exercise of
statutory power vested with the designated statutory authority in
accord with the procedure as by law established and statutorily
prescribed. The petitioner, on the edifice of the case set up, seeks the
following relief:
i. A writ of mandamus, declaring the impugned proceeding initiated by the
respondents 3 to 7 at the instance of the respondent no.2 including the
impugned order bearing no.DCB/SQ/608-10 dated 14.06.2012 and
impugned order bearing no.DCB/SQ/598-602 dated 14.06.2012 insofar
as these relate to the proprietary land of the petitioner measuring 15
Kanals and 15 Marlas and the land measuring 121 Kanals and 05 Marlas,
lawfully held by the petitioner as Attorney Holder, situate at Singhpora
and Dever Yakhmanpora, Pattan, Baramulla, more particularly
delineated in Revenue Excerpts forming Annexure to this writ petition,
ultra-vies the power, authority and jurisdiction as by law vested in the
respondents 3 to 5, and therefore, void ab initio and non est in law, liable
to be interdicted under the appropriate writ of this Court, be issued in
favour of the petitioner and against the respondents;
ii. A writ of certiorari, quashing the impugned order bearing
no.DCB/SQ/608-10 dated 14.06.2012 and impugned order bearing
no.DCB/SQ/598-602 dated 14.06.2012, passed by the respondent no.4
be also issued in favour of the petitioner and against the respondents;
iii. A writ of mandamus, commanding the respondents, in particular the
respondents 2 to 7, to treat the impugned orders dated 14.06.2012,
passed by the respondent no.4, non est in law and to desist and refrain
from interfering or causing any interference with the exercise of
ownership and possessory rights qua the aforementioned parcel of the
land measuring, in all 138 Kanals, illegally and unlawfully and without
any warrant or authority in law and to desist and refrain from acting in
any manner prejudicial to the constitutionally guaranteed rights of the
petitioner guaranteed under Article 19(1)(f), (g) of the Constitution of
India as is applicable to the State of J&K, in the matter of use,
enjoyment, possession and occupation qua the aforementioned parcel of

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the land be also issued in favour of the petitioner and against the
respondents.

2. The respondents 1,3,4,6&7, in their reply, aver that the kind of the
soil of the land forming the subject matter of the writ petition (138
Kanals) is recorded in the revenue records as "maidani" to the extent
of 127 Kanals and 19 Marlas and "Nehriawal" for the remainder
reckoned at 10 Kanals and 01 Marla. The petitioner has been found
trying to construct the housing colony on the said land under the garb
of its conversion into an orchard and, therefore, any kind of
construction on spot by laying of roads and concrete walls shall
facilitate the construction. It shall also be detrimental for the egress
and ingress of the local population as well as the adjacent
landholders. It is next urged by the respondents that the land
measuring 10 Kanals and 01 Marla (Nehri Awal) has also been filled
by the petitioner, which is a clear violation of the Land Revenue Act
and in view of this, the petitioner has no right and locus to challenge
the impugned action initiated by the Deputy Commissioner,
Baramulla, to be taken by the authorities against the petitioner. The
respondents maintain that the petitioner (Reyaz Ahmad Bhat) is
recorded as owner/possessor of an area of 08 Kanals of the land in
the revenue records and the rest of the land measuring 130 Kanals is
recorded in the name of different land owners. It is insisted that the
petitioner has erected a boundary wall on one side of the said land
having a length of about 400 feet in violation of the Court orders and
the Revenue Authorities and erection of the boundary wall has
adversely affected the movement of the other land holders of the
adjacent area. The construction of the road reflects the intention of
the petitioner to convert the said land into a residential colony. It is
further insisted that the orders impugned indicate clearly the aim and

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purpose of the Deputy Commissioner to stop the petitioner from the
construction of the residential colony. Further contention of the
respondents is that the agriculture land once utilized for the
agriculture purposes continues to be agricultural land for all the
times to come even if it is not utilized for that purpose and cannot be
utilized for the non-agricultural purposes in terms of Section 133-A
of the Land Revenue Act. The respondents claim that the petitioner
has not been sincere from day one as he has applied for the
development of the aforesaid land as orchard, but on the ground and
as per the layout he is developing a full-fledged housing colony,
thereby grossly violating the provisions of Section 133 A, B, C of
the Land Revenue Act as the said land has been utilized and
remained as the agricultural land and the adjoining areas of the said
land are "Nehriawal". It is averred that the State Legislative
Assembly has also taken cognizance of the issues involved and
constituted a House Committee to look into the matter as grave
violation of laws/rules was alleged. The House Committee is stated
to have visited the spot and having observed that the petitioner has
violated the provisions of Section 133-A of the Land Revenue Act
by filling the said land in order to establish a housing colony. As the
House Committee represents the State Legislative Assembly, it is all
powerful to take cognizance of any activity which is detrimental to
the interests of the State as per Business Rules of the State
Legislature and that the impugned orders have been issued in
exercise of powers conferred upon the District Collector under
Section 133-A of the Land Revenue Act in order to prevent the
violators from indulging into unlawful activities of converting
agriculture land into housing colony/non-agriculture without any
permission/authority from the competent authority.

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3. Heard and considered.
4. The learned counsel for the petitioner, to buttress the case set up by
the petitioner in the writ petition on hand, has stated that the phrases,
"agriculture", "agricultural use", or "agricultural land", have not
been defined in any relevant Statute dealing with this subject matter
though the "land" has been defined. These phrases have not been
defined in the Constitution of Jammu and Kashmir (Section 158) or
Section 3 of the General Clauses Act (XX of 1920 AD). The phrase
"agriculture" is found in Article 48 of the Constitution of India but
it has not been defined in Article 366. However, "agricultural
income" has been defined therein to carry the same meaning as given
to it in the Statutes relating to Indian Income Tax. Entry 18, List II,
Schedule VII of the Constitution of India vests in the States the
legislative power with respect to "land", "agricultural land", "land
improvement" and "colonization". This power remains with the
State of J&K in terms of Article 370. The subject matter of
"agriculture", "agriculture purpose" and "agricultural operations"
has been exhaustively explained by the Supreme Court in AIR 1957
SC 768 (paragraphs 8, 10, 11, 16, 45, 58, 59, 95, 97).
5. Under various Statutes dealing with land "agricultural land",
"orchards/horticulture" are included in the definition of land unless
specifically excluded in view of the purpose of a certain Statute.
6. "Land" is defined in Section 3(2) of the Land Revenue Act, Section
2(2) of the Land Alienation Act, Section 2(1) of the Tenancy Act,
Section 3(1) (e) of the Aid to Agriculturists Act, Section 2(a)(ii) of
the Big Land Estates Abolition Act, Section 2(9) of the Agrarian
Reforms, Section 2(1) of the Prohibition on Conversion of Land and
Alienation of Orchards Act.

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7. Certain restrictions/limitations are imposed on a landowner's/
landholder's rights to convert the use of agricultural land/orchard to
a non-agricultural use. Even these restrictions can be relaxed with
the permission of Revenue Minister.
8. Subsection (1) of Section 2 of the Jammu and Kashmir Prohibition
on Conversion of Land and Alienation of Orchards Act, 1975 (Act
No. 8 of 1975), provides that "Land" means land which is occupied
or has been let for agricultural purposes or for purposes subservient
to agriculture or for pasture, and includes forest land and wooded
waste but does not include orchards. Subsection (2) of Section 2
envisions that "Orchard" means a compact area of land having fruit
trees grown thereon or devoted to cultivation of fruit trees in such
number that the main use to which the land is put is growing of fruit
or fruit trees except mulberry trees. Section 3(1) (a) stipulates that
notwithstanding anything contained in any other law for the time
being in force no person shall alienate orchard except with the
previous permission of the Revenue Minister or such officer as may
be authorised by him in this behalf. However, there is a proviso
added to Section 3(1)(a), which permits alienation of orchards to the
extent of Four Kanals only in favour of one or more persons for
residential purposes and such alienation does not need any
permission. The Revenue Minister or such officer as may be
authorized by the Revenue Minister, in terms of Section 3(1)(b), can
grant permission for conversion of agricultural land into an orchard.
Proviso to Section 3(1)(b), however, provides that whatever
envisaged in Clause (b) of Subsection (1) of Section 3 shall not apply
to "Khushki land", which is in the personal cultivation of the owner
and the land irrigated by the lift irrigation in the personal cultivation
of the owner.

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9. Under Section 13 of the J&K Agrarian Reforms Act, 1976, a person
can hold land, otherwise than for personal cultivation except where
tenancy is permitted by the Act, or for residential purposes up
to two kanals per family, or, subject to the provisions of the Jammu
and Kashmir Prohibition on Conversion of Land and Alienation of
Orchards Act, 1975 for horticultural purposes or, with the previous
permission of the Revenue Minister or an officer nominated by him
in this behalf, for industrial or commercial purposes. However, the
land recorded as orchard, arak, kap, kah-i-krisham or of a class
notified under clause (f) of section 3 of the Act, shall not be put to
any use other than such orchard or arak, Kap, kah-i-krisham or for
growing fodder or fuel, as the case may be, subject to the second
proviso to sub-section (1) of Section 15 in the case of orchard. The
second proviso to Section 13 provides that where land, not
exceeding half a kanal in area, is used as a gharat or a chakki or
shop, or for such other purpose relating to rural economy, no
permission shall be needed. Second proviso to Section 15(1) of the
Agrarian Reforms Act envisages that where the Government is
satisfied that any land under use as an orchard has ceased to be fit
for such continued use, the Government may permit alternative use
of such a land.
10.Section 3 of the Act indicates that the Act shall not apply to the
categories of land specified thereunder. Section 3(l) permits the land
reserved or acquired for residential purposes subject to the provisos
to clause (j), i.e. 04 Kanals of land per family/per member family of
a cooperative society shall be exempted from the other provisions of
the Act. In other words, a person or a cooperative society can acquire
land for residential purposes subject to the limit of 04 Kanals of land
per family individually or as a member of a cooperative society.

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Under Section 3(c) of the Act land owned by any industrial or
commercial undertaking or set apart or acquired by the government
for the industrial, commercial or residential purposes is exempted
from the provisions of the Act. Section 3(1)(a) of the Prohibition on
Conversion of Land and Alienation of Orchards Act permits 04
Kanals of orchard to be converted for residential purposes. Section
13 of the J&K Agrarian Reforms Act, 1976, permits 02 Kanals of
land for residential purposes. It, thus, reads:
"13. Restriction on utilization of land--
(1) after the commencement of this Act no person shall hold
land, otherwise than for personal cultivation (except where tenancy is
permitted by this Act), or for residential purposes up to [two] kanals per
family, or, subject to the provisions of the Jammu and Kashmir
Prohibition on Conversion of Land and Alienation of Orchards Act,
1975 for horticultural purposes or, with the previous permission of the
Revenue Minister or an officer nominated by him in this behalf, for
industrial or commercial purposes:
Provided that land recorded as orchard, arak, kap, kah-i-krisham
or of a class notified under clause (f) of section 3 shall not be put to any
use other than such orchard or arak, Kap, kah-i-krisham or for growing
fodder or fuel, as the case may be, subject to the second proviso to sub-
section (1) of section 15 in the case of orchard:
Provided further that where land, not exceeding half a kanal in
area, is used as a gharat or a chakki or shop, or for such other purpose
relating to rural economy, no permission shall be needed.
(2) Except as otherwise provided in this Act, no tenancy created
or continued after the first day of May, 1973 in respect of any land shall
be valid.
(3) Rights, title and interest in land of any person who, except
for reasons beyond his control, fails to utilize the land in accordance
with, or utilizes land in contravention of the provisions of sub-section
(1) or lets land to a tenant in contravention of the provisions of sub-
section (2) shall, after such enquiry, as may be prescribed, vest in the
State."

11.Section 3(j) of the Agrarian Reforms Act exempts 04 Kanals of land
per family individually or as member of a cooperative society for
residential purposes.
12.Section 133-A of the Land Revenue Act, Svt. 1996, envisages that
no land which grows or has been growing shali crop, vegetables, or

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saffron lullis, shall be used for any purpose other than agricultural
purpose without permission in writing of the Revenue Minister.
13.Petitioner's land does not fall within the mischief of any limitation/
prohibition imposed under Section 133-A of the Land Revenue Act.
The limitation is attracted only if any of the three crops specified
therein i.e. Paddy, Vegetables, Saffron "grows" or "has been
growing" in the land in question. The particulars relating to the land
in question furnished by the Collector/Court appointed
Commissioner's report clearly establishes that it does not "grow"
nor "has been growing" any of the crops specified above from many
years.
14.The phrases, "grows", "has been growing" clearly means that the
land in question presently grows or shall have been continuously
growing a specified crop. "Has been grown", is present participle
continuous tense and its grammatical meaning is clear. It is a
paradigm case and presents a situation in which clear words should
be given their plain grammatical meaning. The words are not
capable of two different meanings. They do not warrant or justify a
recourse to external aids to discover their meaning.
15.The object of the Amendment Act in deleting the words "previous
two years" in Section 133-A of the Land Revenue Act, discloses a
certain purpose, which the amendment has failed to achieve. The
Court cannot rewrite the Statute to accord with the stated objective.
The defective draftsman-ship does not justify a plea that the Court
should or can supply the deficiencies.
16.To give effect to the stated objective of the Amendment Act, the
language used should have been as follows:
"land which grows or had been growing paddy etc. in the past even
though it is currently fallow, shall not be used for any non-

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agricultural purpose, except with the permission of the Revenue
Minister."

Surely this is not what the Amending Act has stated. The well-
established principle of law is that a Statute should be interpreted to
mean what it says and not what is intended or desired
17.Assuming that the land in question falls under the mischief of
Section 133-A of the Land Revenue Act, there was no violation of
its provisions because the land was being developed as an Orchard,
which is an agricultural purpose. Although the petitioner could
develop this land in terms of Section 133-A as well as in view of the
proviso to Section 3(1)(b)(i) of the J&K Prohibition on Conversion
of Land and Alienation of Orchards Act, yet such permission was
obtained by the petitioner.
18.The official records submitted by the respondent no.4 read with the
report of the Court appointed Commissioner establish that the land
in question has become Banjar Qadeem as defined under the Land
Revenue Act Regulations, Standing Order 23-B, Standing Order 22.
19.The doctrine of law is that where words used in a Statute are capable
of two different meanings, the Court should attribute that meaning
to such words as would lead to a reasonable and fair result. To
achieve this end, the English Judges have invented the device of
attributing a certain intention and the Will to Parliament in enacting
a Statute. This is a peculiar feature of the evolution of common law
and the development of doctrine of ultra vires in English
Jurisprudence. The Jurisprudential reason for the adoption of this
device requires a brief discussion that follows: -
20.Every Act passed by the Parliament is sovereign. The Courts cannot
question it.

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21.To ensure the Rule of law, the British Courts have invented the
device of presuming will and intention of the Parliament through a
process of construction that accords with the requirements of rule of
law.
Presumed Intention:
22.Art of Statutory Construction:
(a) Since there is no Bill of Rights to invoke ultra vires, the Judges
have devised the Rule of Will of Parliament (Administrative
Law, Fifth Edition H.W.R.Wade, p. 40)
(b) It is presumed that the Parliament did not intend to authorise
abuses, and that certain safeguards against abuses must be
implied in the Act.
(c) Assumed intention that Power be exercised fairly
(Administrative Law, Fifth Edition H.W.R.Wade, p.38-39)
(d) Doctrine of ultra vires is used by finding implied limitations in
the Act of Parliament.
(e) Rules of administrative law presumed that Parliament wishes
them to be enforced by Courts to enable them to exercise the
power of ultra vires when necessary
23.Doctrine of dictation and abdication of statutory power/duty as a
statutory body:
i. Directions cannot be issued to a statutory body as the
legislature has placed trust in him to act independently and not
under someone else's dictation.
ii. Directions cannot be issued where there is no provision in the
Act to issue directions to the designated\ authority. (AIR 1966
SC 1081)
24. Violation of the principles of natural justice/categorical imperative
of fairness:

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i) It was the statutory duty of the respondent no.4 to follow the
procedure laid down under Section 133-B, 133-C of the land
Revenue Act. He has breached this duty which renders his
orders void in law.
ii) Respondent no.4 was discharging quasi-judicial functions.
Even if it is supposed that he was discharging administrative
functions, he was under a constitutional duty to afford hearing
to the petitioner. His failure to do so has rendered all his action
void in law.
25.Law on dictation/principles of natural justice/fairness
26.The fact that certain unwarranted interference is caused by the
respondents in the petitioner's land cannot be justified on the ground
that a House Committee had issued some directions.
27.Parliamentary Privileges:
i. Separation of powers.
ii. Article 105 of the Constitution of India:
"105. (1) Subject to the provisions of this Constitution and to the rules
and standing orders regulating the procedure of Parliament, there shall
be freedom of speech in Parliament. (2) No member of Parliament shall
be liable to any proceedings in any court in respect of anything said or
any vote given by him in Parliament or any committee thereof, and no
person shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or
proceedings. (3) In other respects, the powers, privileges and immunities
of each House of Parliament, and of the members and the committees of
each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, 1[shall be those of that House
and of its members and committees immediately before the coming into
force of section 15 of the Constitution (Forty-fourth Amendment) Act,
1978]. (4) The provisions of clauses (1), (2) and (3) shall apply in
relation to persons who by virtue of this Constitution have the right to
speak in, and otherwise to take part in the proceedings of, a House of
Parliament or any committee thereof as they apply in relation to
members of Parliament."

iii. Section 72 of the Constitution of J&K:

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"72. (1) Subject to the provisions of this Constitution and to the rules
and standing orders regulating the procedure of the Legislature, there
shall be freedom of speech in the Legislature. (2) No member of the
Legislature shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in the Legislature or any
committee thereof and no person shall be so liable in respect of the
publication by or under the authority of a House of the Legislature of
any report, paper, votes, or proceedings. (3) In other respects, the
powers, privileges and immunities of a House of the Legislature and- of
the members and the committees of a House of the Legislature shall be
such as may from time to time be defined by Legislature by law, and
until so defined shall be those of the Parliament of India and of its
members and committees. (4) The provisions of sub-sections (1), (2) and
(3) shall apply in relation to persons who by virtue of this Constitution
have the right t o speak, in and otherwise to take part in the proceedings
of, a House of the Legislature or any committee thereof as they apply in
relation to members of that Legislature."

28.Article 350 of the Constitution of India read with the provisions of
"Committee on Petitions" allows a citizen to bring before the
Committee a matter of general public interest, provided it does not
fall within the jurisdiction of a court or quasi-judicial authority.
Article 350 provides:
"350. Every person shall be entitled to submit a representation for the
redress of any grievance to any officer or authority of the Union or a
State in any of the languages used in the Union or in the State, as the
case may be.

29. After the enforcement of the Constitution of Jammu and Kashmir,
the first Legislative Assembly came into existence on 26th July,
1957. The Rules of Procedure in force, immediately before the
enforcement of the Constitution, with respect to the Constituent
Assembly of Jammu and Kashmir while discharging the functions
of the Legislative Assembly were modified and adopted by the
Speaker on 31st August, 1957, in pursuance of sub-section (2) of
section 85 of the Constitution of Jammu and Kashmir. The Rules
were further modified by the Speaker on 13th August, 1958, and 4th
and 10th February, 1959, and again, during the life of the 2nd

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Legislative Assembly, in June, 1962 and September, 1963. These
Rules were subjected to further modifications whereupon a new
edition was brought out incorporating the modifications so made
from time to time. The said Rules were modified extensively in
exercise of the powers vested in the Speaker by Section 85(2) of the
Constitution on 25th of March, 1969 when the House was in session
and were published in the extraordinary issue of the Government
Gazette of even date volume 81, No. 51-i, Part III. Subsequently,
subject to approval of the House, the job of amending/ modifying
the rules was assigned to the Rules Committee which is a permanent
Committee of the House covered by Rule 362 to Rule 364 of the
Rules of Procedure and Conduct of Business in the J&K Legislative
Assembly. Since then a number of amendments have been made in
the said rules by the House from time to time on the
recommendations of the Rules Committee which stood duly
incorporated in the previous editions. Having said so, the "Rules of
Procedure and Conduct of Business in the Jammu and Kashmir
Legislative Assembly" furnish all-inclusive Rules vis-à-vis
procedure and conduct of the business in the J&K Legislative
Assembly. The Speaker of the Legislative Assembly at the
commencement of the House, or from time to time, as the case may
be, shall nominate a Committee on Petitions consisting of not less
than seven members. Rule 341 of the Rules of Procedure and Conduct
of Business in the Jammu and Kashmir Legislative Assembly, provide:
"341. At the commencement of the House, or from time to time, as
the case may be, the Speaker shall nominate a Committee on
Petitions consisting of not less than seven members:
Provided that a Minister shall not be nominated a member of
the Committee, and that if a member, after his nomination to the
Committee is appointed a Minister, he shall cease to be a member
of Committee from the date of such appointment."

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30.The Committee on Petition, in the event any petition is referred to it,
is to examine such petition and if the petition complies with the
Rules, the Committee on Petition may direct circulation of the
petition. The Committee on Petition is to report to the House on
specific complaint made in the petition referred to it after taking such
evidence as it deems fit and to suggest remedial measures. Rule 342
of the Rules is apropos in this regard to be reproduced infra:
"342. (1) The Committee shall examine every petition referred to it,
and if the petition complies with these rules, the Committee may
direct that it be circulated. Where circulation of the petition has not
been directed, the Speaker may at any time direct that the petition
be circulated.
(2) Circulation of the petition shall be in extensor or in summary as
the Committee or the Speaker, as the case may be, may direct.
(3) It shall also be the duty of the Committee to report to the House
on specific complaints made in the petition referred to it after taking
such evidence as it deems fit and to suggest remedial measures either
in a concrete form applicable to the case under review or to prevent
such cases in future."

31.The bottom line that emerges from the above is that the Committee
cannot usurp the authority under Section 133-C of the Land Revenue
Act, for, it can only present recommendations and suggestions to the
House/Speaker. The Committee cannot give or pass directions to the
Statutory authorities as same would tantamount to in violation of
Rules 294, 297, 298 and 299 of the "Rules of Procedure and Conduct
of Business in the Jammu and Kashmir Legislative Assembly". The
Collector, in that view of matter, was off beam in implementing the
directions of the Committee in disregard of his quasi-judicial
functions under Sections 133-B and 133-C of the Land Revenue Act.
32.From the above discussion, it comes to fore that the impugned orders
have been issued in clear disregard to the provisions of Section 133-
A of the Land Revenue Act as development of orchard is not a non-
agricultural purpose. There is no bar to use this land even for

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residential purposes. The impugned orders are in breach of clear
terms of Sections 133-B, 133-C of the Land Revenue Act, principles
of natural justice, categorical imperative of fairness and have been
passed on a mistaken presumption that the land in question falls
within the parameters of Section 133-A of the Land Revenue Act.
33.As regards interpretation of Statues and Rules of construction, the
Supreme Court in The State of Rajasthan v. Mrs. Leela Jain and
others Air 1965 SC 1296, held:
"Before considering the arguments addressed to us it would be
convenient to briefly advert to the reasoning by which the learned Judges
held that the State Government had no jurisdiction to entertain the
revision against the order of the Chairman of the Municipal Council
which, as stated already, was not under the provisions of the City of
Jaipur Municipal Act subject to an appeal either to a Municipal authority
or to an outside party. In the first place, the learned Judges considered
that the long title, the preamble and the operative portion of the
enactment other than the crucial words of the proviso all pointed to the
enactment not being intended to alter the substantive rights of parties but
only to provide a new forum for entertaining and disposing appeals
which already existed under the relevant Municipal enactment If, as was
admitted, an order of the President of the Municipal Council
compounding an offence against a Municipal bye-law was under the
City of Jaipur Municipal Act final and not subject to an appeal or any
other kind of interference, they held that it could not be the intention of
the Act to confer a right on the Government to interfere with such orders.
This, one might say, proceeds on the textual construction of the Act. The
other line of reasoning which according to the learned Judges pointed to
the same conclusion was that the City of Jaipur Municipal Act was
intended to confer on the inhabitants of the Municipal area and their
representatives on the Municipal Council the right of local self-
Government and it was inconsistent with that basic conception to read
the Act as making such an inroad on local autonomy as to permit the
Government to interfere in cases where under the Municipal Act an
order was final and immune from challenge. It would, however, be seen
that the construction adopted by the learned Judges does not give any
effect to the words 'or other municipal authorities' in the proviso and, in
fact, on their interpretation the words had no meaning and in reality,
though not in terms, have been rejected as inconsistent with the theory
of the local self-Government. With due respect to the learned Judges we
do not find it possible to agree that it is permissible to omit or delete
words from the operative part of an enactment, which have meaning and
significance in their normal connotation merely on the ground that
according to the view of the Court it is inconsistent with the spirit
underlying the enactment. Unless the words are unmeaning or absurd,

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it would not be in accord with any sound principle of construction to
refuse to give effect to the provisions of a statute on the very elusive
ground that to give them their ordinary meaning leads to
consequences which are not in accord with the notions of propriety or
justice entertained by the Court. No doubt, if there are other provisions
in the statute which conflict with them, the Court may prefer the one
and reject the other on the ground of repugnance. Surely, that is not
the position here. Again, when the words in the statute are reasonably
capable of more than one interpretation, the object and purpose of the
statute, a general conspectus of its provisions, and the context in which
they occur might induce a court to adopt a more liberal or a more strict
view of the provisions, as the case may be, as being more consonant
with the underlying purpose. But we do not consider it possible to
reject words used in an enactment merely for the reason that they do
not accord with the context in which they occur. or with the purpose
of the legislation as gathered from the preamble or long title. The
preamble may, no doubt, be used to solve any ambiguity or to fix the
meaning of words which may have more than one meaning, but it can,
however, not be used to eliminate as redundant or unintended, the
operative provisions of a statute. Besides, if one strictly applied this rule
of interpretation that the Act did not intend to make provision for
nothing except a forum for appeals--the whole of the proviso even where
it provided for revisions against the orders of a Commissioner, must be
rejected as traveling beyond the long title and the preamble, for in
neither of them is reference made to revisions. We do not therefore
consider that in the case of the Act under consideration, it would be
possible to reject the words "or a municipality authority" by reference to
the preamble and the long title." (emphasis supplied)

34.The Court will not be justified in supplying deficiencies in the Act,
if the Act itself does not by plain language used carry out its object.
This adage emerges from the judgement rendered by the Supreme
Court in Janapada Sabha, Chindwara etc. v. The Central
Provinces Syndicate Ltd and another, AIR 1971 SC 57. The
Supreme Court observed:
"7. The preamble of the Act states that it is "An Act to validate the
imposition and collection of cess on coal by certain local authorities".
Act 18 of 1964 is a taxing statute which purports to rectify the defects
pointed out by this Court. This Court declared invalid the levy of cess
by the Independent Mining Local Board, Chhindwara, at a rate
exceeding three pies per ton. If the Act does not by the plain language
used therein carry out the object, the Court will not be justified in
supplying deficiencies in the Act. As observed by Rowlatt, J., in Cape
Branty Syndicate v. Commissioners of Inland Revenue, (1921) 12 Tax
Cas 358.

OWP no.904/2012 Page 17 of 56
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"In a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment. There is no equity about a
tax. There is no presumption as to a tax. Nothing is to be read in,
nothing is to be implied. One can only look fairly at the language
used."
These observations were approved by the House of Lords in
Canadian Eagle Oil Co. Ltd. v. King (1946) 27 Tax Cas 206. This Court
has also adopted the same rule in Commr. Of Income-tax v. Ajax
Products Ltd., 55 ITR 741 = (AIR 1965 SC 1358) and Commissioner of
Income-tax v. B.M. Kharwar (1969) 2 SCR 651 = (AIR 1969 SC 812).
8. The relevant words which purport to validate the imposition,
assessment and collection of cess on coal may be recalled : they are
"cesses imposed, assessed or collected by the Board in pursuance of the
notifications/notices specified in the Schedule shall, for all purposes, be
deemed to be, and to have always been validly imposed, assessed or
collected as if the enactment under which they were so issued stood
amended at all material times so as to empower the Board to issue the
said notifications notices". Thereby the enactments, i.e., Act 4 of 1920
and the Rules framed under the, Act, pursuant to which the notifications
and notices were issued, must be deemed to have been amended by the
Act. But the Act does not set out the amendments intended to be made
in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a
fiction it deems the Act of 1920 and the, rules framed thereunder to have
been amended without disclosing the text or even the nature of the
amendments."

35.Qua interpretation of Statutes and usage of external evidence at what
time, the Supreme Court in Anandji Haridas & Co Pvt. Ltd. V.
Engineering Mazdoor Sangh and another AIR 1975 SC 946, held:
"As a general principle of interpretation, where the words of a statute are plain,
precise and unambiguous, the intention of the Legislature is to be gathered
from the language of the statute itself and no external evidence such as
Parliamentary Debates, Reports of the Committees of the Legislature or even
the statement made by the Minister on the introduction of a measure or by the
framers of the Act is admissible to construe those words. It is only where a
statute is not exhaustive or where its language is ambiguous, uncertain, clouded
or susceptible of more than one meaning or shades of meaning, that external
evidence as to the evils, if any, which the statute was intended to remedy, or of
the circumstances which led to the passing of the statute may be looked into
for the purpose of ascertaining the object which the Legislature had in view in
using the words in question."

36.The Supreme Court in Superintendent and Remembrancer of Legal
Affairs to Govt. of West Bengal v. Abani Maity, AIR 1979 SC 1029,
observed:

OWP no.904/2012 Page 18 of 56
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"18.But a statute is not to be interpreted merely from the lexicographer's
angle. The court must give effect to the will and inbuilt policy of the
Legislature as discernible from the object and scheme of the enactment
and the language employed therein.
19. Exposition ex visceribus actus is a long-recognised rule of
construction. Words in a statute often take their meaning from the
context of the statute as a whole. They are therefore, not to be cons trued
in isolation. For instance, the use of the word "may" would normally
indicate that the provision was not mandatory. But in the context of a
particular statute, this word may connote a legislative imperative,
particularly when its construction in a permissive sense would relegate
it to the unenviable position, as it were, "of an ineffectual angel beating
its wings in a luminous void in vain". If the choice is between two
interpretations", said Viscount Simon L.C. in Nokes v. Doncaster
Amalgamated Collieries, Ltd,(1) "the narrower of which would fail to
achieve the manifest purpose of the legislation we should avoid a
construction which would reduce the legislation to futility and should
rather accept the bolder construction based on the view that Parliament
would legislate only for the purpose of bringing about an effective
result."

37.Before going in search of any external aids of construction, the
language employed by the Legislature is to be looked into because
no canon of construction can be said to be more firmly established
than this that the Legislature used appropriate language to manifest
its intention. When Statute requires a certain thing to be done in a
certain manner, it can be done in that manner alone unless a contrary
indication is to be found in the Statute. It is well-known principle of
interpretation of statutes that a construction should not be put upon
a statutory provision which lead to manifest absurdity or futility,
palpable injustice, or absurd inconvenience or anomaly. [See:
Babaji Kondaji Garad and another v. Nasik Merchants
Cooperative Bank Ltd, Nasik and others, AIR 1984 SC 192; M.
Pentiah v. Mudala Veeramallappa, AIR 1961 SC 1107; and
American Home Products Corporation v. Mac Laboratories Pvt.
Ltd and another, AIR 1986 SC 137].
38.It is not the duty of the Court either to enlarge the scope of the
legislation or the intention of the legislature when the language of

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the provision is plain and unambiguous. The Court cannot rewrite,
recast or reframe the legislation for the very good reason that it has
no power to legislate. The power to legislate has not been conferred
on the courts. The Court cannot add words to a statute or read words
into it which are not there. Assuming there is a defect or an omission
in the words used by the legislature the Court could not go to its aid
to correct or make up the deficiency. The Courts shall decide what
the law is and not what it should be. The Court, of course, adopts a
construction which will carry out the obvious intention of the
legislature but could not legislate itself. But to invoke judicial
activism to set at naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities. [Vide:
Union of India and another v. Deoki Nandan Aggarwal, AIR 1992
SC 96; P.K. Unni v. Nirmala Industries, 1990 1 SCR 482 at 488;
Mangilal v. Suganchand Rathi, (1965) 5 SCR 239; Sri Ram Ram
Narain Medhi v. The State of Bombay, (1959) Supp. 1 SCR
489; Smt. Hira Devi & Ors. v. District Board, Shahjahanpur,
(1952) SCR 1122 at 113 1; Nalinkhya Bysack v. Shyam Sunder
Haldar & Ors., (1953) SCR 533 at 545; Gujarat Steel Tubes Ltd.
v. Gujarat Steel Tubes Mazdaor Sabha, (1980) 2 SCR 146; S.
Narayanaswami v. G. Pannerselvam & Ors., (1973) 1 SCR 172 at
182; N.S. Vardachari v. G. Vasantha Pai & Anr., (1973) 1 SCR
886; Union of India v. Sankal Chand Himatlal Sheth & Anr.,
(1978) 1 SCR 423 and Commissioner of Sales Tax, U.P.v. Auriaya
Chamber of Commerce, Allahabad, (1986) 2 SCR 430 at 438].
Modifying and altering the scheme and applying it to others who are
not otherwise entitled to under the scheme, will not also come under
the principle of affirmative action adopted by the courts some times
in order to avoid discrimination.

OWP no.904/2012 Page 20 of 56
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39.The ordinary rule of the construction is the provision of a Statute
must be construed in accordance with the language used therein
unless there are compelling reasons, such as, where a literal
construction would reduce the provision to absurdity or prevent
manifest intention of the legislature from being carried out. If any
term or expression has been defined in the enactment then it must be
understood in the sense in which it is defined but in the absence of
any definition being given in the enactment the meaning of the term
in common parlance has to be adopted. The Supreme Court, while
saying so, has in M/s Oswal Agro Mills Ltd etc. etc. v. Collector of
Central Excise and others, AIR 1993 SC 2288, observed as follows:

"The provisions of the Tariff do not determine the relevant entity of the
goods. They deal whether and under what entry, the identified entity
attracts duty. The goods are to be identified and then to find the
appropriate heading, sub- heading under which the identified
goods/products would be classified. To find the appropriate
classification description employed in the tariff nomenclature should be
appreciated having regard to the terms of the headings read with the
relevant provisions or statutory rules or interpretation put up thereon.
For exigibility' to excise duty the entity must be specified in positive
terms under a particular tariff entry. In its absence be deduced from a
proper construction of the tariff entry. There is neither intendment nor
equity in a taxing statute. Nothing is implied. Neither can we insert nor
anything can we delete but it should be interpreted and construed as per
the words the legislature has chosen to employ. in the Act or Rules.
There is no room for assumption or presumptions. The object of the
parliament has to be gathered from the language used in the statute. The
contention that toilet soap is commercially different from household and
laundry soaps, as could be seen from the opening words of entry 15,
needs careful analysis. It is well, at the outset, to guard against confusion
between the meaning and the legal effect of an expression used in a
statute. Where the words of the statute are plain and clear, there is no
room for applying any of the principles of interpretation which are
merely presumption in cases of ambiguity in the statute. The court would
interpret them as they stand. The object and purpose has to be gathered
from such word themselves. Words should not be regarded as being
surplus nor be rendered Otiose. Strictly speaking there is no place in
such cases for interpretation or construction except where the words of
statute admit of two meanings. The safer and more correct course to deal
with a question of construction of statute is to take the words themselves
and arrive, if possible, at their meaning, without, in the first place,

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reference to cases for theories of construction. Let us, therefore, consider
the meaning of the word soap "household". The word household
signifies a family living together. In the simplistic language toilet soap
being used by the family as household soap is too simplification to reach
a conclusion. Therefore, one has to gather its meaning in the legal setting
to discover the object which the Act seeks to serve and the purpose of
the amendment brought about. The task of interpretation of the statute is
not a mechanical one. It is more than mere reading of mathematical
formula. It is an attempt to discover the intention of the legislature from
the language used by it, keeping always in mind, that the language is at
best an imperfect instrument for the expression of actual human
thoughts. It is also idle to expect that the draftman drafted it with divine
prescience and perfect and unequivocal clarity. Therefore, court would
endeavour to eschew literal construction if it produces manifest
absurdity or unjust result. In Manmohan Das v. Vishnu Das, AIR 1967
SC 643 a Constitution bench held as follows:
"The ordinary rule of construction is the provision of a statute
must be construed in accordance with the language used therein
unless there are compelling reasons, such as, where a literal
construction would reduce the provision to absurdity or prevent
manifest intention of the legislature from being carried out."

40.It is a cardinal principle of interpretation of the Statute that the words
of a Statute must be understood in their natural, ordinary or popular
sense and construed according to their grammatical meaning, unless
such construction leads to some absurdity or unless there is
something in the context or in the object of the Statute to suggest to
the contrary. The golden rule is that the words of a Statute must
prima facie be given their ordinary meaning. It is yet another rule of
construction that when the words of the Statute are clear, plain and
unambiguous, then the Courts are bound to give effect to that
meaning, irrespective of the consequences. It is said that the words
themselves best declare the intention of the law giver. The Courts
have adhered to the principle that efforts should be made to give
meaning to each and every word used by the legislature and it is not
a sound principle of construction to brush aside words in a Statute
as being inapposite surpluses, if they can have a proper application
in circumstances conceivable within the contemplation of the

OWP no.904/2012 Page 22 of 56
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Statute. The Supreme Court in Gurudevdatta VKSSS Maryadit v.
State of Maharashtra AIR 2001 SC 1980, observed and held as
under:
"21.While the statements of objects and reasons in the normal
course of event cannot be termed to be the main or principal aid to
construction but in the event, it is required to discern the
reasonableness of the classification as in the case of Shashikant
Laxman Kale and Anr. v. Union of India & Anr. AIR 1990 SC 2114,
statement of objects and reasons can be usefully looked into for
appreciating the background of legislatures classification. This
Court in para 16 of the judgment last noticed had the following to
state:
"For determining the purpose or object of the legislation, it
is permissible to look into the circumstances which prevailed
at the time when the law was passed and which necessitated
the passing of that law. For the limited purpose of
appreciating the background and the antecedent factual
matrix leading to the legislation, it is permissible to look into
the Statement of Objects and Reasons of the Bill which
actuated the step to provide a remedy for the then existing
malady. In a. Thangal Kunju Musaliar v. M. Venkitachalam
Potti, [1955 (2) SCR 1196 : AIR 1956 SC 246], the
Statement of Objects and Reasons was used for judging the
reasonableness of a classification made in an enactment to
see if it infringed or was contrary to the Constitution. In that
decision for determining the question, even affidavit on
behalf of the State of the circumstances which prevailed at
the time when the law there under consideration had been
passed and which necessitated the passing of that law was
relied on. It was reiterated in State of West Bengal v. Union
of India, [1964 (1) SCR 371 : (AIR 1963 SC 1241) that the
Statement and Objects and Reasons accompanying a Bill,
when introduced in Parliament, can be used for the limited
purpose of understanding the background and the antecedent
state of affairs leading up to the legislation. Similarly,
in Pannalal Binjraj v. Union of India, [1957 SCR 233 : AIR
1957 SC 397] a challenge to the validity of classification was
repelled placing reliance on an affidavit filed on behalf of
the Central Board of Revenue disclosing the true object of
enacting the impugned provision in the Income-tax Act."
22. The High Court of Australia also without any departure
therefrom permits reference to the explanatory memorandum to the
Bill in order to ascertain the mischief which the statute was
intending to remedy: See in this context CIC Insurance Limited v.
Bankstown Football Club Ltd. [1997 (187) CLR p. 384] wherein it
has been stated:
"It is well settled that at common law, apart from any
reliance upon s 15 AB of the Acts Interpretation Act 1901

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(Cth), the court may have regard to reports of law reform
bodies to ascertain the mischief which a statute is intended
to cure (Black-Clawson International Ltd. v. Papierwerke
Waldhof-Aschaffenburg : 1975 AC 591 at 614, 629, 638).
Moreover, the modern approach to statutory interpretation
(a) insists that the context be considered in the first instance,
not merely at some later stage when ambiguity might be
thought to arise, and (b) uses context in its widest sense to
include such things as the existing state of the law and the
mischief which, by legitimate means such as those just
mentioned, one may discern the statute was intended to
remedy (Attorney General v. Prince Ernest Augustus of
Hanover : 1957 AC 436 at 461). Instances of general words
in a statute being so constrained by their context are
numerous. In particular as Mc Hugh JA pointed out in
Isherwood v. Butler Pollnow Pty Ltd. (1986 6 NSWLR 363
at 388), if the apparently plain words of a provision are read
in the light of the mischief which the statute was designed to
overcome and of the objects of the legislation, they may
wear a very different appearance. Further, inconvenience or
improbability of result may assist the court in preferring to
the literal meaning an alternative construction which, by the
steps identified above, is reasonably open and more closely
conforms to the legislative intent (Cooper Brookes
(Wollomgong) Pty Ltd. v. Federal Commissioner of
Taxation.: 1981 (147) CLR 297 at 320-321)."
23. Another decision of the Australian High Court in the case of
Newcastle City Council v. GIO General Limited [1998 (72) ALJR
97 (Aust.) may also be noticed at this juncture wherein the
observations and elucidation of cannons of construction and
interpretation by Brennan, CJ seem to be very apposite and we do
record our unhesitant concurrence therewith.
The observations however runs as below:
"Moreover, as the extrinsic material reveals, s.40(3) was
intended to be remedial. As far as practicable, s.40(1) and
(3) should be construed to promote the objects of the Act.
Nevertheless, as I pointed out in Kingston v. Keprose Pty
Ltd. [1987 (11) NSWLR 404 at 423], in applying a purposive
construction, the function of the court remains one of
construction and not legislation. When the express words of
a legislative provision are reasonably capable of only one
construction and neither the purpose of the provision nor any
other provision in the legislation throws doubt on that
construction, a court cannot ignore it and substitute a
different construction because it furthers the objects of the
legislation."
................
The circumstances in which recourse can legitimately be had to the
extrinsic material Mr. Sackar relied on S. 15-AB of the Acts
Interpretation Act to urge this Court to examine and take into

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account the extrinsic material. Section 15AB is entitled Use of
extrinsic material in the interpretation of an Act and relevantly
provides:
"(1) Subject to sub-section (3), in the interpretation of a
provision of an Act, if any material not forming part of the
Act is capable of assisting in the ascertainment of the
meaning of the provision, consideration may be given to that
material:
(a) to confirm that the meaning of the provision is the
ordinary meaning conveyed by the text of the provision
taking into account its context in the Act and the purpose or
object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the
provision taking into account its context in the Act and the
purpose or object underlying the Act leads to a result that is
manifestly absurd or is unreasonable.
(2) Without limiting the generality of sub-section (1), the
material that may be considered in accordance with that sub-
section in the interpretation of a provision of an Act includes:
...........
(b) any relevant report of a Royal Commission, Law
Reform Commission, committee of inquiry or other similar
body that was laid before either House of the Parliament
before the time when the provision was enacted;
.........
(e) any explanatory memorandum relating to the Bill
containing the provision....."
24. On a perusal of the aforesaid, be it noted that in the event the
language is clear, categorical and unequivocal, no outside aid is
required or is permissible for interpreting the proviso to the Section
by the Amending Act of 2000. In the contextual facts and in the
view we have taken above, we regret our inability to accede to or
record our concurrence with the submissions of Mr. Bobde.
25. Further we wish to clarify that it is a cardinal principle of
interpretation of statute that the words of a statute must be
understood in their natural, ordinary or popular sense and construed
according to their grammatical meaning, unless such construction
leads to some absurdity or unless there is something in the context
or in the object of the statute to suggest to the contrary. The golden
rule is that the words of a statute must prima facie be given their
ordinary meaning. It is yet another rule of construction that when
the words of the statute are clear, plain and unambiguous, then the
Courts are bound to give effect to that meaning, irrespective of the
consequences. It is said that the words themselves best declare the
intention of the law giver. The Courts have adhered to the principle
that efforts should be made to give meaning to each and every word
used by the legislature and it is not a sound principle of construction
to brush aside words in a statute as being inapposite surpluses, if

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they can have a proper application in circumstances conceivable
within the contemplation of the statute.........."

41.A Statute is an edict of the legislature. The elementary principle of
interpreting or construing a Statute is to gather the mens or sententia legis
of the legislature. Interpretation postulates the search for the true
meaning of the words used in the statute as a medium of expression
to communicate a particular thought. The task is not easy as the
"language" is often misunderstood even in ordinary conversation or
correspondence. The tragedy is that although in the matter of
correspondence or conversation the person who has spoken the
words or used the language can be approached for clarification, the
legislature cannot be approached as the Legislature, after enacting a
law or Act, becomes functus officio so far as that particular Act is
concerned and it cannot itself interpret it. No doubt, the legislature
retains the power to amend or repeal the law so made and can also
declare its meaning, but that can be done only by making another
law or statute after undertaking the whole process of law-making.
The Supreme Court while saying so, has also said that the Statute
being an edict of the legislature, it is necessary that it is expressed in
clear and unambiguous language and that in spite of the Courts
saying so, the draftsmen have paid little attention and they still boast
of the old British jingle "I am the parliamentary draftsman. I
compose the country's laws. And of half of the litigation, I am
undoubtedly the cause", which was referred to by the Supreme Court
in Palace Admn. Board v. Rama Varma Bharathan Thampuran
(AIR 1980 SC 1187 at. P.1195). In Kirby v. Leather (1965 (2) All
ER 441) the draftsmen were severely criticized in regard to Section
22(2)(b) of the (UK) Limitation Act, 1939, as it was said that the

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section was so obscure that the draftsmen must have been of
unsound mind.
42.Where, however, the words were clear, there is no obscurity, there
is no ambiguity and the intention of the legislature is clearly
conveyed, there is no scope for the Court to innovate or take upon
itself the task of amending or altering the statutory provisions. In that
situation the Judges should not proclaim that they are playing the
role of a law-maker merely for an exhibition of judicial valour. They
have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or
erased. This can be vouchsafed by "an alert recognition of the
necessity not to cross it and instinctive, as well as trained reluctance
to do so". (See: Frankfurter, Some Reflections on the Reading of
Statutes in "Essays on Jurisprudence", Columbia Law Review,
P.51.). It is true that the Court in interpreting the Constitution enjoys
a freedom which is not available in interpreting a statute and,
therefore, it will be beneficial at this stage to reproduce what Lord
Diplock said in Duport Steels Ltd. v. Sirs (1980 (1) ALL ER 529, at
p.542):
"It endangers continued public confidence in the political
impartiality of the judiciary, which is essential to the continuance of
the rule of law, if Judges, under the guise of interpretation, provide
their own preferred amendments to statutes which experience of
their operation has shown to have had consequences that members
of the court before whom the matter comes consider to be injurious
to public interest."

43.Where, therefore, the "language" is clear, the intention of the
legislature is to be gathered from the language used. What is to be
borne in mind is as to what has been said in the statute as also what
has not been said. A construction which requires, for its support,
addition or substitution of words or which results in rejection of

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words, has to be avoided, unless it is covered by the rule of
exception, including that of necessity. [See: J.P. Bansal v. State of
Rajasthan and another AIR 2003 SC 1405; Gwalior Rayons Silk
Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests (AIR 1990 SC
1747 at p. 1752); Shyam Kishori Devi v. Patna Municipal Corpn.
(AIR 1966 SC 1678 at p. 1682); A.R. Antulay v. Ramdas Sriniwas
Nayak (1984 (2) SCC 500, at pp. 518, 519)]. Indeed, the Court
cannot reframe the legislation as it has no power to legislate. [See:
State of Kerala v. Mathai Verghese (1986 (4) SCC 746, at p.
749); Union of India v. Deoki Nandan Aggarwal (AIR 1992 SC 96
at p.101)].
44.It is well settled principle in law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. The
language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that
the intention of the legislation must be found in the words used by
the legislature itself. The question is not what may be supposed and
has been intended but what has been said. "Statutes should be
construed, not as theorems of Euclid", Judge Learned Hand said,
"but words must be construed with some imagination of the purposes
which lie behind them". [See: Lenigh Valley Coal Co. v. Yensavage
(218 FR 547). The view was re- iterated in Union of India v. Filip
Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981 and
Padma Sundara Rao (dead) and others v. State of Tamil Nadu and
others 2002 (3) SCC 533].
45.In D.R. Venkatchalam v Dy. Transport Commissioner (1977 (2)
SCC 273) it was observed that the Courts must avoid the danger of
a priori determination of the meaning of a provision based on their
own preconceived notions of the ideological structure or the scheme

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into which the provision to be interpreted is somewhat fitted. They
are not entitled to usurp the legislative function under the disguise
of the interpretation.
46.While interpreting a provision the Court only interprets the law and
cannot legislate it. If a provision of law is misused and subjected to
the abuse of process of law, it is for the Legislature to amend, modify
or repeal it, if deemed necessary. (Vide: Rishabh Agro Industries
Ltd. V. P.N.B. Capital Services Ltd. (2000 (5) SCC 515). The
legislative casus omissus cannot be supplied by judicial
interpretative process. The Supreme court in Prakash Nath Khanna
and another v. Commissioner of Income Tax and another, (2004)
9 SCC 636, has defined the two principles of constructions i.e. one
relating to casus omissus and other qua reading the Statute as a
whole, and observed infra:
"16.Two principles of construction - one relating to casus omissus
and the other in regard to reading the statute as a whole - appear to
be well settled. Under the first principle a casus omissus cannot be
supplied by the Court except in the case of clear necessity and when
reason for it is found in the four corners of the Statute itself but at
the same time a casus omissus should not be readily inferred and for
that purpose all the parts of a statute or section must be construed
together and every clause of a section should be construed with
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent
enactment of the whole statute. This would be more so if literal
construction of a particular clause leads to manifestly absurd or
anomalous results which could not have been intended by the
legislature. "An intention to produce an unreasonable result", said
Danckwerts, L.J., in Artemiou v. Procopiou (1966 (1) QB 878), "is
not to be imputed to a statute if there is some other construction
available". Where to apply words literally would "defeat the obvious
intention of the legislation and produce a wholly unreasonable
result", we must "do some violence to the words" and so achieve
that obvious intention and produce a rational construction. (Per Lord
Reid in Luke v. IRC {1963 AC 557} where at AC p.577 he also
observed: "This is not a new problem, though our standard of
drafting is such that it rarely emerges".}
17*. The heading of the Section or the marginal note may be relied
upon to clear any doubt or ambiguity in the interpretation of the
provision and to discern the legislative intent. In C.I.T. v.

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Ahmedbhai Umarbhai and Co. (AIR 1950 SC 134) after referring to
the view expressed by Lord Machnaghten in Balraj Kunwar v.
Jagatpal Singh (ILR 26 All. 393 (PC), it was held that marginal notes
in an Indian Statute, as in an Act of Parliament cannot be referred to
for the purpose of construing the statute. Similar view was expressed
in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors.
(1979(2) SCC 468), and Kalawatibai v. Soiryabai and Ors. (AIR
1991 SC 1581). Marginal note certainly cannot control the meaning
of the body of the Section if the language employed there is clear.
(See Smt. Nandini Satpathy v. P.L. Dani and Anr. (AIR 1978 SC
1025)."

47.The interpretative function of the Court is to discover the true
legislative intent. It is trite that in interpreting a Statute, the Court
must, if the words are clear, plain, unambiguous and reasonably
susceptible to only one meaning, give to the words that meaning,
irrespective of the consequences. Those words must be expounded
in their natural and ordinary sense. When a language is plain and
unambiguous and admits of only one meaning, no question of
construction of statute arises, for, the Act speaks for itself. The
Courts are not concerned with the policy involved or that the results
are injurious or otherwise, which may follow from giving effect to
the language used. If the words used are capable of one construction
only then it would not be open to the Courts to adopt any other
hypothetical construction on the ground that such construction is
more consistent with the alleged object and policy of the Act. In
considering whether there is ambiguity, the Court must look at the
Statute as a whole and consider the appropriateness of the meaning
in a particular context avoiding absurdity and inconsistencies or
unreasonableness which may render the Statute unconstitutional.
48.It is equally well settled that in interpreting a statute, effort should
be made to give effect to each and every word used by the
Legislature. The Courts always presume that the Legislature inserted
every part thereof for a purpose and the legislative intention is that

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every part of the Statute should have effect. A construction which
attributes redundancy to the legislature will not be accepted except
for compelling reasons such as obvious drafting errors. In this regard
being had to State of U.P. and others v. Vijay Anand Maharaj, AIR
1963 SC 946; Rananjaya Singh v. Baijnath Singh and others, AIR
1954 SC 749; Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957
SC 907; Bhagwan Das v. Paras Nath AIR 1970 SC 971; Nyadar
Singh v. Union of India and others, AIR 1988 SC 1979; J. K.
Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P., AIR
1961 S.C. 1170; and Ghanshyam Das vs. Regional Assistant
Commissioner, Sales Tax, AIR 1964 S.C. 766.

49.It is also well settled that literal interpretation should be given to a
statute if the same does not lead to an absurdity. In Nasiruddin and
others v. Sita Ram Agarwal, (2003) 2 SCC 577 the Supreme Court
stated the law in the following terms:
"37. The court's jurisdiction to interpret a statute can be invoked
when the same is ambiguous. It is well known that in a given case
the court can iron out the fabric but it cannot change the texture of
the fabric. It cannot enlarge the scope of legislation or intention
when the language of provision is plain and unambiguous. It cannot
add or subtract words to a statute or read something into it which is
not there. It cannot re-write or recast legislation. It is also necessary
to determine that there exists a presumption that the legislature has
not used any superfluous words. It is well settled that the real
intention of the legislation must be gathered from the language used.
It may be true that use of the expression "shall or may" is not
decisive for arriving at a finding as to whether statute is directory or
mandatory. But the intention of the legislature must be found out
from the scheme of the Act. It is also equally well settled that when
negative words are used the courts will presume that the intention of
the legislature was that the provisions should be mandatory in
character."

50.Even if there exists some ambiguity in the language or the same is
capable of two interpretations, as held by the Supreme Court Nathi
Devi v. Radha Devi Gupta, AIR 2005 SC 648, it is trite the

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interpretation which serves the object and purport of the Act must be
given effect to. In such a case the doctrine of purposive construction
should be adopted. (See: Swedish Match AB and another vs.
Securities & Exchange Board, India and another, 2004 (7) Scale
158.) In High Court of Gujarat and another vs. Gujarat Kishan
Mazdoor Panchayat and others, (2003) 4 SCC 712, the Supreme
Court held:
"35. The Court while interpreting the provision of a statute, although, is
not entitled to rewrite the statute itself, is not debarred from "ironing out
the creases". The court should always make an attempt to uphold the
rules and interpret the same in such a manner which would make it
workable.
36. It is also a well-settled principle of law that an attempt should be
made to give effect to each and every word employed in a statute and
such interpretation which would render a particular provision redundant
or otiose should be avoided."

51.As early as in the year 1957, the Supreme Court in The
Commissioner of Income Tax, Calcutta v. Raja Benoy Kumar
Sahas Roy, AIR 1957 SC 768, while dealing with the case
concerning assessment of tax on agriculture income has furnished
connotations qua "agriculture", "agriculture income", agriculture
operations etcetera. Pertinent to the present case is intension of
"agriculture". The following excerpt are worth to be reproduced:
"(95) We have, therefore, to consider when it can be said that the
land is used for agricultural purposes or agricultural operations are
performed on it. Agriculture is the basic idea underlying the expressions
"agricultural purposes" and "agricultural operations" and it is pertinent
therefore to enquire what is the connotation of the term "agriculture".
As we have noted above, the primary sense in which the term
agriculture is understood is agar--field and cultra--cultivation, i.e., the
cultivation of the field and if the term is understood only in that sense,
agriculture would be restricted only to cultivation of the land in the strict
sense of the term meaning thereby, tilling of the land, sowing of the
seeds, planting and similar operations on the land.
They would be the basic operations and would require the
expenditure of human skill and labour upon the land itself. There are
however other operations which have got to be resorted to by the
agriculturist and which are absolutely necessary for the purpose of
effectively raising the produce from the land.

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They are operations to be performed after the produce sprouts
from the land, e.g., weeding, digging the soil around the growth, removal
of undesirable under-growths and all operations which foster the growth
and preserve the same not only from insects and pests but also from
depredation from outside, tending, pruning, cutting, harvesting, and
rendering the produce fit for the market. The latter would all be
agricultural operations when taken in conjunction with the basic
operations above described, and it would be futile to urge that they are
not agricultural operations at all.
But even though these subsequent operations may be assimilated
to agricultural operations, when they are in conjunction with these basic
operations, could it be said that even though they are divorced from
these basic operations they would nevertheless enjoy the characteristic
of agricultural operations? Can one eliminate these basic operations
altogether and say that even if these basic operations are not performed
in a given case the mere performance of these subsequent operations
would be tantamount to the performance of agricultural operations on
the land so as to constitute the income derived by the assessee therefrom
agricultural income within the definition on that term?
(96) We are of opinion that the mere performance of these
subsequent operations on the products of the land, where such products
have not been raised on the land by the performance of the basic
operations which we have described above would not be enough to
characterise them as agricultural operations. In order to invest them with
the character of agricultural operations, these subsequent operations
must necessarily be in conjunction with and a continuation of the basic
operations which are the effective cause of the products being raised
from the land.
It is only if the products are raised from the land by the
performance of these basic operations that the subsequent operations
attach themselves to the products of the land and acquire the
characteristic of agricultural operations. The cultivation of the land does
not comprise merely of raising the products of the land in the narrower
sense of the term like tilling of the land, sowing of the seeds, planting,
and similar work done on the land but also includes the subsequent
operations set out above all of which operations, basic as well as
subsequent, form one integrated activity of the agriculturist and the term
"agriculture" has got to be understood as connoting this integrated
activity of the agriculturist.
One cannot dissociate the basic operations from the subsequent
operations, and say that the subsequent operations, even though they are
divorced from the basic operations can constitute agricultural operations
by themselves. If this integrated activity which constitutes agriculture is
undertaken and performed in regard to any land that land can be said to
have been used for " agricultural purposes " and the income derived
therefrom can be said to be " agricultural income" derived from the land
by agriculture.
(97) In considering the connotation of the term "agriculture" we
have so far thought of cultivation of land in the wider sense as
comprising within its scope the basic as well as the subsequent

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operations described above, regardless of the nature of the products
raised on the land. These products may be grain or vegetables or fruits
which are necessary for the sustenance of human beings including
plantations and groves, or grass or pasture for consumption of beasts or
articles of luxury such as, betel, coffee, tea, spices, tobacco etc., or
commercial crops like, cotton, flax, jute, hemp, indigo etc.
All these are products raised from the land and the term
"agriculture" cannot be confined merely to the production of grain and
food products for human beings and beasts as was sought to be done by
Bhashyam Ayyangar J., in Murugesa Chetti v. Chinnathambi
Goundun ILR 24 Mad 421 (c) or Sadashiva Ayyar J., in Rajah of
Venkatagiri v. Ayyappa Reddi ILR 38 Mad 738 : (AIR 1915 Mad (2) (L)
but must be understood as comprising all the products of the land which
have some utility either for consumption or for trade and commerce and
would also include forest products such as timber, sal and piyasal trees,
casuarina plantations, tendu leaves, horranuts etc.
(98) The question still remains whether there is any warrant for
the further extension of the term " agriculture " to all activities in relation
to the land or having connection with the land including breeding and
rearing of livestock, dairy-farming, butter and cheese making, poultry-
farming, etc. This extension is based on the dictionary meanings of the
term and the definitions of agriculture "collated in Wharton's Law
Lexicon, as also the dicta of Lord Cullen and Lord Wright in Lean &
Dickinson v. Ball (3) and Lord Glaneley v. Wightman 1933 A C 618
(HL) 638 (z) quoted above.
(99) Derbyshire, C.J., in Moolji Sicka & Co., In (1925) Tax Cas
341 (y) treated tendu plants growing on the soil as part of the soil and
therefore considered the pruning of the shrub as cultivation of the soil in
a legal and technical sense and this extension of the term "agriculture"
was also approved by Vishwanatha Sastri J., in Commissioner of Income
Tax v. K. E. Sundara Mudaliar [1950] 18 I.T.R. 259, 271 : (AIR 1950
Mad 566 at p.570) (E). We are however of opinion that the mere fact
that an activity has some connection with or is in some way dependent
on land is not sufficient to bring it within the scope of the term and such
extension of the term "agriculture" is unwarranted.
The term "agriculture" cannot be dissociated from the primary
significance thereof which is that of cultivation of the land and even
though it can be extended in the manner we have stated before both in
regard to the process of agriculture and the products which are raised
upon the land, there is no warrant at all for extending it to all activities
which have relation to the land or are in any way connected with the
land. The use of the word agriculture in regard to such activities would
certainly be a distortion of the term.
(100) A critical examination of the definition of "agricultural
income" as given in S. 2(1) of the Indian Income Tax Act and the
relevant provisions of the several Agricultural Income Tax Acts of the
various States also lends support to this position. In the first instance, it
is defined as rent or revenue derived from land which is used for
agricultural purposes; and it is next defined as income derived from such

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land by agriculture or by the activities described in cls.2 and 3 of S.
2(1)(b) of the Act.
These activities are postulated to be performed by the cultivator
or receiver of rent-in-kind of such land in regard to the products raised
or received by him which necessarily means the produce raised on the
land either by himself or by the actual cultivator of the land who pays
such rent-in-kind to him. If produce raised or received by the cultivator
or receiver of rent-in-kind is thus made the subject-matter of cls. (ii) and
(iii) in s. 2(1)(b) of the Act, the term "agriculture" used in cl. (i) of s.
2(1)(b) must also be similarly restricted to the performance of the basic
operations on the land and there is no scope for reading the term
agriculture " in the still wider sense indicated above.
(101) If the term " agriculture " is thus understood as comprising
within its scope the basic as well as subsequent operations in the process
of agriculture and the raising on the land of products which have some
utility either for consumption or for trade and commerce, it will be seen
that the term "agriculture" receives a wider interpretation both in regard
to its operations as well as the results of the same.
Nevertheless there is present all throughout the basic idea that
there must be at the bottom of it cultivation of land in the sense of tilling
of the land, sowing of the seeds, planting, and similar work done on the
land itself This basic conception is the essential sine qua non of any
operation performed on the land constituting agricultural operation. If
the basic operations are there, the rest of the operations found
themselves upon the same.
But if these basic operations are wanting the subsequent
operations do not acquire the characteristic of agricultural operations.
(102) All these operations no doubt require the expenditure of
human labour and skill but the human labour and skill spent in the
performance of the basic operations only can be said to have been spent
upon the land. The human labour and skill spent in the performance of
subsequent operations cannot be said to have been spent on the land
itself, though it may have the effect of preserving, fostering and
regenerating the products of the land.
(103) This distinction is not so important in cases where the
agriculturist performs these operations as a part of his integrated activity
in cultivation of the land. Where, however, the products of the land are
of spontaneous growth, unassisted by human skill and labour, and
human skill and labour are spent merely in fostering the growth,
preservation and regeneration of such products of land, the question falls
to be considered whether these subsequent operations performed by the
agriculturist are agricultural operations and enjoy the characteristic of
agricultural operations."

52.The bottom line that emerges from the above is that the primary
sense in which the term "agriculture" is understood is agar--field
and cultra--cultivation, i.e. cultivation of the field and if the term is
understood only in that sense, agriculture would be restricted only to

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cultivation of the land in the strict sense of the term meaning thereby,
tilling of the land, sowing of the seeds, planting and similar
operations on the land. The same would be the basic operations and
would require the expenditure of human skill and labour upon the
land itself. There are, however, other operations that can to be
resorted to by the agriculturist and which are absolutely necessary
for the purpose of effectively raising the produce from the land. They
are operations to be performed after the produce sprouts from the
land, e.g., weeding, digging the soil around the growth, removal of
undesirable under-growths and all operations which foster the
growth and preserve the same not only from insects and pests but
also from depredation from outside, tending, pruning, cutting,
harvesting, and rendering the produce fit for the market. The latter
would all be agricultural operations when taken in conjunction with
the basic operations and it would be futile to urge that they are not
agricultural operations at all. It is only if the products are raised
from the land by the performance of the basic operations that the
subsequent operations attach themselves to the products of the land
and acquire the characteristic of the agricultural operations. The
cultivation of the land does not comprise merely of raising the
products of the land in the narrower sense of the term, like tilling of
the land, sowing of the seeds, planting, and the similar work done on
the land but also includes the subsequent operations, basic as well as
subsequent, which form one integrated activity of the agriculturist
and the term "agriculture" has got to be understood as connoting this
integrated activity of the agriculturist. One cannot dissociate the
basic operations from the subsequent operations and say that the
subsequent operations, even though they are divorced from the basic
operations can constitute the agricultural operations by themselves.

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If this integrated activity which constitutes the agriculture is
undertaken and performed in regard to any land that land can be said
to have been used for "agricultural purposes" and the
income derived therefrom can be said to be "agricultural income"
derived from the land by agriculturist. In viewing the connotation of
the term "agriculture" we have so far thought of cultivation of land
in the wider sense as comprising within its scope the basic as well as
the subsequent operations described above, regardless of the nature
of the products raised on the land. These products may be grain or
vegetables or fruits, which are necessary for the sustenance of
human beings including plantations and groves, or grass or pasture
for consumption of beasts or articles of luxury such as, betel, coffee,
tea, spices, tobacco etc., or commercial crops like, cotton, flax, jute,
hemp, indigo etc. All these are products raised from the land and the
term "agriculture" cannot be confined merely to the production of
grain and food products for human beings and beasts but must be
understood as comprising all the products of the land which have
some utility either for consumption or for trade and commerce and
would also include forest/orchard products such as timber, sal and
piyasal trees, casuarina plantations, tendu leaves, horranuts, apple,
pear, etc. The question still remains whether there is any warrant for
the further extension of the term "agriculture" to all activities
concerning the land or having connection with the land including
breeding and rearing of livestock, dairy-farming, butter and cheese
making, poultry-farming, etc. Derbyshire, C.J., in Moolji Sicka &
Co., In (1925) Tax Cas 341 (y) treated tendu plants growing on the
soil as part of the soil and therefore considered the pruning of the
shrub as cultivation of the soil in a legal and technical sense and this
extension of the term "agriculture" was also approved by

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Vishwanatha Sastri J., in Commissioner of Income Tax v. K. E.
Sundara Mudaliar (AIR 1950 Mad 566 at p.570) (E). The term
"agriculture", therefore, cannot be dissociated from the primary
significance thereof which is that of the cultivation of the land and
even though it can be extended in the manner, stated before, both in
respect of the process of the agriculture and the products which are
raised upon the land.
53.Revert to the case in hand. The basis for assessment of the land
revenue for a land is the produce of that land. Quantum of the
produce varies from field to field, village to village, city to city and
province to province, so the determination of the class of soil on the
basis of fertility of the soil, climatic conditions of the area and above
all the irrigation facility available is essential. For this purpose, the
soil of the land is being put in different categories, which is termed
as classification of soil. The soils differ naturally one from another
in respect of their mineralogical and chemical composition, and in
respect of the mechanical arrangement of their component parts.
Thus, there are broad classification of clay, loam and sand, which
are distinguished by adventitious differences as irrigated and
unirrigated, manured and unmanured, dofasli and effasli. It is best to
use the word "soils" only to denote varieties resulting from the
inherent qualities of the land and to describe varieties due to
adventitious qualities as "classes" but this distinction is not always
observed. When the differences, whether natural or adventitious, are
so great as to cause a marked inequality of renting value their
recognition in the record is essential both for assessment purposes
and for the proper distribution of the demand over holdings. Most
important division of land into classes is that founded on the source
from which the moisture required for the growth of the crops is

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derived and therefore the land is classified as Barani, Sailab, Abi,
Nahri, Chahi. The land, Barani and Sailab, fall under the general
head of un-irrigated and the land, Abi, Nahri and Chahi, under
irrigated land. Be that as it may, the lands in a particular area is
divided into three broad categories, namely, cultivated, uncultivated
and uncultivable. Land watered by kuhls, streams, springs or river
branches or by lifts from tanks, jheels, pools, marshes, andnot falling
under the heads of Chahi or Nehri is classified as Abi. Nadru and
Pitchi areas in Kashmir fall under Abi category. It is pertinent to
mention here that the soil description in the Jamabandi is intended
to show the permanent method of husbandry applied to each field
and not the condition applicable to any particular harvest or harvests.
The soil entry must, therefore, be changed, when a permanent
change has occurred, as e.g., by cultivation of land which was
previously Banjar Jadid or Banjar Qadim or by the conversion of
Barani into Chahi land owing to the sinking of a new well or by the
conversion of cultivated land into Banjar Jadid or Banjar Qadim.
Changes in soil classification need only be made in the Jamabandi
in the year in which the quadrennial attestation takes place. [See:
Land Laws in Jammu & Kashmir (Revenue Manual) Vo.I by Justice
(Retd.) Hakim Imtiyaz Hussain, p.155, 156, 157). In the present case,
the land in question is recorded as Maidani. The word "Maidani"
means all level land unirrigated which depends on rain for
cultivation. Spring crops are usually sown in it. It is not properly
taken care of, and hence, unless the rain falls at favourable intervals,
a failure results. As iterated above as well, the official records
submitted by the respondent no.4 read with the report of the Court
appointed Commissioner establish that the land in question has

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become Banjar Qadeem as defined under the Land Revenue Act
Regulations, Standing Order 23-B, Standing Order 22.
54.After above discussion, let us have a relook to Section 133-A of the
J&K Land Revenue Act. It envisions that no land which grows or
has been growing shali crop, vegetables, or saffron lullis, shall be
used for any purpose other than agricultural purpose without
permission in writing of the Revenue Minister. Contravention to the
provisions of Section 133-A entail employment of its succeeding
provisions enveloped in Section 133-C, which stipulates:
"133-C (1) If any person contravenes the provisions of section 133-
A or section 133-B, the Collector or any other officer not below the
rank of an Assistant Collector of the first class, as he may authorise,
may, by notice in writing served in the manner hereinafter provided,
direct such person to show cause within the time specified in the
notice as to why he should not remove the contravention and restore
the land or water-surface or water field or floating field, as the case
may be, to its original condition by a particular date and if such
person fails to show cause to the satisfaction of the Collector or such
officer, within that time, the Collector or such officer may, after
informing the person of his decision, remove or cause to be removed
the contravention and in doing so, may use such force as may be
necessary.
(2) The Collector or the officer authorised by him under sub-section
(1) shall cause a copy of the notice to be served on the person, who
contravenes the provisions of section 133-A or section 133-B, by
delivering or tendering it to such person or failing him, on his
recognised agent or on an adult male member of his family usually
residing with him, and in case such person, agent or adult male
member, as the case may be, refused, evades or fails to accept or
comply with the service of the notice or is not otherwise available,
the Collector or the officer shall cause the notice to be served by
having it affixed, on the outer door or some other conspicuous part
of usual or last known place of residence of such person and if serve
cannot be so made; the Collector or the officer shall cause the notice
to be published in any local newspaper, besides affixing a copy
thereof on some conspicuous place of the land or water field or the
floating field or the fending of the water in respect of which he has
committed contravention, and thereupon the notice shall be deemed
to have been duly served on him."

55.The provisions of Section 133-C, therefore, systematize mechanism
in compliant with natural justice. Contravention to the provisions of

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Section 133-A by any person is to be dealt with by the Collector or
any other officer not below the rank of an Assistant Collector of the
first class. A threshold action to be taken by Collector is to serve a
notice in writing upon a person, contravening provisions of Section
133-A, asking him to show cause within the time to be specified in
the notice as to why he should not remove the contravention and
restore the land to its original condition by a particular date. The
serving of notice, thus, as enjoined in Section 133-C, tantamount to
compliance of audi alteram partem, so as to meet principles of
natural justice. If such a person fails to reply to the notice, such
person is to be informed as regards the decision to be taken for
removing or causing to remove the contravention.
56.The dividing line between an administrative power and a quasi-
judicial power is quite thin and is being gradually obliterated. For
determining whether a power is an administrative power or a quasi-
judicial power, one has to look to the nature of the power conferred,
the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power is
expected to be exercised. Under our Constitution the rule of law
pervades over the entire field of administration. Every organ of the
State under our Constitution is regulated and controlled by the rule
of law. In a welfare State like ours it is inevitable that the jurisdiction
of the administrative bodies is increasing at a rapid rate. The concept
of rule of law would lose its vitality if the instrumentalities of the
State are not charged with the duty of discharging their functions in
a fair and just manner. The requirement of acting judicially in
essence is nothing but a requirement to act justly and fairly and not
arbitrarily or capriciously. The procedures, which are considered

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inherent in the exercise of a judicial power, are merely those which
facilitate if not ensure a just and fair decision. In recent years the
concept of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power some years
back, is now being considered as a quasi-judicial power. The
following observations of Lord Parker C.J. in Regina v. Criminal
Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B. 864,
881, are instructive:
"With regard to Mr. Bridge's second point I cannot think that
Atkin, L.J. intended to confine his principle to cases in which the
determination affected rights in the sense of enforceable rights. Indeed,
in the Electricity Commissioners case, the rights determined were at any
rate not immediately enforceable rights since the scheme laid down by
the commissioners had to be approved by the Minister of Transport and
by resolutions of Parliament. The commissioners nevertheless were held
amenable to the jurisdiction of this court. Moreover, as can be seen from
Rex. v. Postmaster-General, Ex-parte Carmichael, [1928] 1 K.B.291 and
Rex. v. Boycott Ex parte Keasley, [1939] 2 K.B. 651, the remedy is
available even though the decision is merely a step as a result of which
legally enforceable rights may be affected.
The position as I see it is that the exact limits of the ancient
remedy by way of certiorari have never been and ought not to be
specifically defined. They have varied from time to time being extended
to meet changing conditions. At one time the writ only went to an
inferior court. Later its ambit was extended to statutory tribunals
determining a lis inter parties. Later again it extended to cases where
there was no lis in the strict sense of the word but where immediate or
subsequent rights of a citizen were affected. The only constant limits
throughout were that it was performing -a public duty. Private or
domestic tribunals have always been outside the scope of certiorari since
their authority is derived solely from contract, that is, from the
agreement of the parties concerned.
Finally, it is to be observed that the remedy has now been
extended, see Reg. v. Manchester Legal Aid Committee, Ex parte R. A.
Brand & Co. Ltd., [1952] 2 Q.B. 313, to cases in which the decision of
an administrative officer is only arrived at after an inquiry or process of
a judicial or quasi-judicial character. In such a case this court has
jurisdiction to supervise that process.
We have as it seems to me reached the position when the ambit
of certiorari can be said to cover every case in which a body of persons
of a public as opposed to a purely private or domestic character has to
determine matters affecting subjects provided always that it has a duty
to act judicially. Looked at in this way the board in my judgment comes
fairly and squarely, within the jurisdiction of this court. It is as Mr.

OWP no.904/2012 Page 42 of 56
43

Bridge said, 'a servant of the Crown charged by the Crown, by executive
instruction, with the duty of distributing the bounty of the Crown'. It is
clearly, therefore, performing public duties."

57.The Supreme Court in the case of Purtabpore Co. Ltd. V. Cane
Commissioner of Bihar, [1969] 2 S.C.R. 807, held that the power to
alter the area reserved under the Sugar Cane (Control) Order 1966 is
a quasi-judicial power, by further observing that with the increase of
the power of the administrative bodies it has become necessary to
provide guidelines for the just exercise of their power. To prevent
the abuse of that power and to see that it does not become a new
despotism, courts are gradually evolving the principles to be
observed while exercising such powers. In matters like these, public
good is not advanced by a rigid adherence to precedents. New
problems call for new solutions. It is neither possible nor desirable
to fix the limits of a quasi-judicial power. But for the purpose of the
present case, let it be assumed that the power exercised by the
respondent no.4 was an administrative power, and test the validity
of the impugned order and action on that basis. The petitioner made
an application for grant of permission for earth filling of the
"Banjar" barren land. However, the respondent no.4 vide orders
no.DCB/SQ/608-10 dated 14th June 2012 and no.DCB/SQ/598-602
dated 14th June 2012, directed the respondent no.7 to remove all
kinds of structures/roads constructed into the said land and submit
the report to the respondent no.2. These orders are in violation of
principles of natural justice for the reasons infra.
58.The skyline of natural justice is constantly expanding. The question
how far the principles of natural justice govern administrative
enquiries came up for consideration before the Queens Bench
Division in re : H. K. (An Infant) [1967] 2 Q.B. 617, 630. Therein

OWP no.904/2012 Page 43 of 56
44

the validity of the action taken by an Immigration Officer came up
for consideration. In the course of his judgment Lord Parker, C.J.

observed, thus:

"But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."

59.In the same case Blain, J. observed thus:

"I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie."

60.An administrative order involving civil consequences must be made consistently with the rules of natural justice. The Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei AIR 1967 SC 1269, observed:

"We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State...."

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61.The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (a) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (b) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by the Supreme Court in Suresh Koshy George v. The University of Kerala and ors., AIR 1969 SC 198, the rules of natural OWP no.904/2012 Page 45 of 56 46 justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that was necessary for a just decision on the facts of that case.

62.In the present case the Collector or any other authorized officer not below the rank of the Assistant Collector of the first class, under Section 133-C of the Land Revenue Act, is the exclusive authority to act and deal with the case(s) concerning contravention to provisions of Section 133-A of the Act. Thus, the power to issue show cause notice and to consider and decide the response, if any, to the show cause notice and take subsequent action and decision, is exclusive province of the authority under the auspices of Section 133-C. The recommendations, if any, made by any other authority or for that matter by the House Committee will not, as such, triumph over or abate the authority of the Collector. Having said so, impugned action culminated in impugned order is vitiated in law. The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and the politics of Power best expressed by Benjamin Dizreeli (Vivien Grey, BK. VI. Ch. 7):

"I repeat that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist."

OWP no.904/2012 Page 46 of 56 47

63.In addition to these is yet another bearing on the play of natural justice, its nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge-made juristics, but the pragmatic, yet principled, requirement of fair play in action as the norm of a civilised justice-system and minimum of good government-crystallized clearly in our jurisprudence by a catena of cases.

64.Another alike pertinent matter is that when a statutory functionary makes an order, based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Then, an order, bad in the beginning, may, by the time it comes to the Court on account of a challenge, gets validated by additional grounds later brought out. The attention in this regard is drawn to the observations of Bose J. in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16:

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

65.Undeniably, natural justice is a pervasive facet of the secular law where a spiritual touch invigorates the legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of the authority. It is the bone of the healthy government, recognized from the earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam - and of Kautilya's Arthasastra - the OWP no.904/2012 Page 47 of 56 48 rule of law has had this stamp of natural justice, which makes it social justice. The roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. The dichotomy between administrative and quasi-judicial functions apropos the doctrine of natural justice is seemingly obsolescent after A.K. Kraipak v. Union of India AIR 1970 SC 150, in India, and Schmidt v.Secretary of State for Home Affairs, (1969) 2 Ch D 149, in England. The Kraipak case (supra) marks the watershed in the application of natural justice to administrative proceedings. Hegde, J., speaking for a Bench of Five Judges observed, quoting for support Lord Parker in In re: H.K. (an infant) [1967] 2 Q.B. 617, 630:

"It is not necessary to examine these decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding."

....

"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it."

.......

"The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala(") the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever, a complaint is made before a court that some principle of natural justice had been OWP no.904/2012 Page 48 of 56 49 contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

66.It is noteworthy that Mathew, J. observed in Smt. Indira Gandhi v. Raj Narain (1975) SC 2299:

"If the amending body really exercised judicial power that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be, observed in exercising it, the nature of the, power would call for its observance."

67.Lord Morris of Borthy-y-Gest [Current Legal Problems 1973, vol. 26 p.16] in his address before the Bentham club concluded:

"We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying those principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic"

conception? I believe it does. Is it just a rhetorical but vague phrase which can I be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled if it lacks more exalted inspiration."

68.The Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851, observed that it is fair to hold that subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play. Krishna Iyer J. speaking for a Bench of Five Judges in Mohinder Singh Gill (supra) observed that once we understand the soul of the rule as fair play in action - and it is so - we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, OWP no.904/2012 Page 49 of 56 50 inconvenience and expense, if natural justice gains access. For fairness itself is a flexible: pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more- but nothing less. The 'exceptions' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. Let us look at the jurisprudential aspects of natural justice, limited to the needs of the present case, as the doctrine has developed in the Indo-Anglian systems. We may state that the question of nullity does not arise here because we are on the construction of a constitutional clause. Even otherwise, the rule of natural justice bears upon construction where a statute is silent save in that category where a legislation is charged with the vice of unreasonableness and consequential voidness.

69.The rules of natural justice are rooted in all legal systems, not any new theology, and are manifested in the twin principles of nemo judes in sua caues and audi alteram partem. The grievance ventilated here is 'condemned unheard'. Sporadic applications or catalogue of instances cannot make for a scientific statement of the law and so consistent criteria for application and principles for carving out exceptions, is to be weaved. When natural justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into OWP no.904/2012 Page 50 of 56 51 trial-type trappings. Ridge v. Baldwin [1964] A.C. 40, is a leading case that restored light to an area benighted by the narrow conceptualism of the previous decades to borrow Professor Clark's expression. (Natural justice Substance and Shadow - 'Public Law' Journal- Spring 1975). Good administration demands fair play in action and this simple desideratum is the fount of natural justice. As already recapitulated that the classification of functions as 'judicial' or 'administrative' is a stultifying shibboleth, discarded in India. Today, in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fair play into its wheels.

70.Law cannot be divorced from life and therefore, it is that the life of the law is not logic but experience. If, by the experiential test, importing the right to be heard will paralyse the process, law will exclude it. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social or haphazard solutions should be eschewed. Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law, while dealing with the nemo judex aspect, with expressiveness.

"Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the judge was biased'."

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71.If the afore-quoted milieu is adapted to the audi alteram situation by the altered statement:

"Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no confidence' will be heard to say, 'that man had no chance to defend his stance'."

72.That is why Tuckor LJ in Russol v. Duke of Norfolk(1) (1) (1949) 1 All E.R. 109( at 118 E), emphasised that 'whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando (1967) 2 AC 337) observed that 'while great urgency may rightly limit such opportunity timeously, perhaps severely there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy to lockjaw the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public injury flowing from the least delay is self-evident. Even in such cases a remedial hearing as soon as urgent action has been taken is the next best.

73.The procedural precondition of fair hearing, however, minimal, even post- decisional, has relevance to administrative and judicial gentlemanliness. The authority under Section 133-C of the Land Revenue Act is an institution of central importance and enjoys far- reaching powers and the greater the power to affect others' right or liabilities the more necessary the need to hear. The glory of the law is not that sweeping rules are laid down, but that it tailors principles to practical needs, doctors remedies to suit the patient, promotes, not freezes, life's processes, if we may mix metaphors. Tucker L.J. drove OWP no.904/2012 Page 52 of 56 53 home this point when he observed in the case of Russol v. Duke of Norfolk (supra):

"There are no words which are of universal application to very kind of inquiry...... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting the subject-matter that is being dealt with, and so forth".

74.This circumstantial flexibility of fair bearing has been underscored in Wiseman v. Borneman (1971) AC 297, by Lord Reid when he said he would be "sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules". Lord Denning, with attractive realism and principled pragmatism, set out the rule in Salvarajan (1976) 1 All ER 12 at p.19:

"The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings. or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, when he should be told the case made against him and be afforded a fair opportunity of answering it. The investigation body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report."

75.The Courts must be tempered by the thought while compromise on principle is unprincipled, applied administrative law in modern complexities of government must realistic, not academic. The myriad maybes and the diverse urgencies are live factors. Natural justice should not destroy administrative order by insisting on the impossible. Nobody will deny that the authority under Section 133- C of the Land Revenue Act is a central figure and a high functionary. Discretion vested in it will ordinarily be used wisely, not rashly, although to echo Lord Camden wide discretion is fraught with OWP no.904/2012 Page 53 of 56 54 tyrannical potential even in high personages, absent legal norms and institutional checks, and relaxation of legal canalisation on generous 'VIP' assumptions may boomerang. Natural justice is one such check on exercise of power.

76.Should the cardinal principle of 'hearing' as condition for decision- making be martyred for the cause of administrative, immediacy? I think not. The full panoply may not be there but a manageable minimum may make-do. In Wiseman v. Bornenwn (1967) 3 All ER 1045, there was a hint of the competitive claims of hurry and hearing. Lord Reid said: 'Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give fall opportunity to the defendant to see material against him'.

77.The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery C.J's judgment in R. V. Home Secretary, Ex. P. Hosenball (1977) 1 W.L.R. 766, 772, whereafter saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" He went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice".

78.It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is OWP no.904/2012 Page 54 of 56 55 applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland (1971) 2 Lloyd's Rep. 515, Donaldson J. said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. V. Thames Magistrates Court, ex. p. Polemis (1974)1 W.L.R. 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge.

"It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: 'Well, even if the case had been properly conducted, the result would have been the same'. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C.J. at p. 1375)".

79.The Supreme Court in S.L. Kapoor v. Jagmohan and others AIR 1981 SC 135, observed infra:

"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural OWP no.904/2012 Page 55 of 56 56 justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."

80.Viewed in the background of what has been said and done above, the impugned orders bearing bearing no.DCB/SQ/608-10 dated 14.06.2012 and no.DCB/SQ/598-602 dated 14.06.2012, cannot stand the test of law and reason. These are not based on any material from which a reasonable opinion could be derived to put forth the plea that the respondent no.4 has followed and complied twin principles of nemo judes in sua caues and audi alteram partem, as a sequel to which, the writ petition is allowed and the impugned orders bearing no.DCB/SQ/608-10 dated 14.06.2012 and no.DCB/ SQ/598-602 dated 14.06.2012, are quashed. The respondents are directed not to cause any interference with the exercise of ownership and possessory rights of the petitioner qua the aforementioned land, measuring 138 Kanals situate at Singhpora and Dever Yakhmanpora, Pattan Baramulla, in the matter of its use, enjoyment, possession and occupation by the petitioner. Disposed of.

(M. K. Hanjura) Judge Srinagar 12/02/2018 Ajaz Ahmad HIGH COURT OF JAMMU AND KASHMIR OWP No.904/2011 Riyaz Ahmad Bhat Vs State of J&K and others Judgement pronouncement by me in terms of Rule 138(3) of J&K High Court Rules of 1999. Matter was heard and reserved by his lordship Hon'ble Mr. Justice M. K. Hanjura.

Dated:

12.02.2018 (Sanjeev Kumar) Judge.

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